Petitioner,
Andrew Butler, has filed a petition for a writ of habeas
corpus, pursuant to 28 U.S.C. § 2254, seeking release
from the New Hampshire State Prison's Secure Psychiatric
Unit (“SPU”). At the time his petition was filed,
Butler, who has now been released, had been placed at the SPU
pursuant to his civil commitment to the New Hampshire State
Hospital (“NHH”).[1]See Pet. (Doc. No. 1). Before the
court is the respondents' motion (Doc. No. 4) and
memorandum of law (Doc. No. 7) seeking dismissal of the
petition. Petitioner has objected (Doc. Nos. 12, 13).
Respondents filed a reply (Doc. No. 14), and the petitioner
filed a surreply (Doc. No. 15).

The
court held a hearing on the respondents' motion to
dismiss on August 29, 2018, at which the petitioner and his
guardian appeared with counsel.[2] Counsel for the respondents
appeared on the respondents' behalf.

Butler
was civilly committed to the NHH pursuant to an order of the
state probate court on December 29, 2017. See In re
Butler, No. 317-2017-IN-00444 (N.H. Cir. Ct., 6th
Cir.-Prob. Div.-Concord, Dec. 29, 2017). While Butler was
hospitalized at the NHH pursuant to his civil commitment, he
was involuntarily transferred to the SPU. At the time this
petition was filed, there were no criminal charges pending
against Butler, he had not been convicted of any crime, and
he had not been found not guilty by reason of insanity in any
criminal case. Butler's petition before this court
challenges the legality of his custody in a prison facility
in the absence of a criminal conviction or detention order
related to a criminal case. In his petition, Butler asserts
the following grounds for relief[4]:

1. Butler's indefinite placement in a unit in a maximum
security prison, in the absence of a criminal charge or
conviction, violates his right to due process; and

2. Butler's placement in the SPU violates the Americans
with Disabilities Act, in that: a) SPU is not an accredited
mental health treatment facility; and b) at SPU Butler is
subjected to “harmful and cruel” treatment and
housing conditions.

Discussion

I.
Exhaustion

To be
eligible for relief in a § 2254 petition, a habeas
petitioner must show that he has exhausted the remedies
available to him in the state courts on his federal habeas
claims, or that state corrective processes are unavailable or
ineffective to protect his rights. See 28 U.S.C. §
2254(b)(1). Cf. “[A] petitioner's failure to
present his federal constitutional claim to the state courts
is ordinarily fatal to the prosecution of a federal habeas
case.” Coningford v. Rhode Island, 640 F.3d
478, 482 (1st Cir.), cert. denied,132 S.Ct. 426
(2011).

A claim for habeas corpus relief has been exhausted where the
claim has been fairly presented to the state courts. Fair
presentation means that the petitioner must show that he
tendered his federal claim in such a way as to make it
probable that a reasonable jurist would have been alerted to
the existence of the federal question.

Dutil v. Murphy,550 F.3d 154, 158 (1st Cir. 2008)
(citations and quotation marks omitted). A petitioner may
demonstrate that he should be excepted from the exhaustion if
he shows that state corrective processes were unavailable,
circumstances rendered the process ineffective to protect
petitioner's rights, or he does not have the right under
state law to raise the claim at issue. See 28 U.S.C.
§§ 2254(b)(1), (c).

In
their motion to dismiss, the respondents assert, among other
arguments, that Butler's § 2254 petition should be
dismissed because Butler failed to exhaust his claims in the
state court prior to bringing his petition here. At the
August 29, 2018 hearing, the petitioner acknowledged that he
has not exhausted the claims in his § 2254 petition in
any state court. Further, Butler does not contest that, at
the time he was placed in the SPU, N.H. Rev. Stat. Ann.
§§ 622:45(V), 622:52 and N.H. Code Admin. R. He-M
611.07(a) provided him with a right to a due process hearing
to review the appropriateness of that transfer, and that he
had a right to appeal the ...

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